‘Innocence’ a burden of proof almost impossible to meet

Donald Marshall was eventually acquitted of murder after spending 11 years in prison.

The B.C. Court of Appeal said Ivan Henry was wrongly convicted. But if he wants compensation for the 27 years he spent in prison, he’s got an uphill fight.

In Canada, there is no legal entitlement to compensation for a wrongful conviction.

The much-celebrated presumption of innocence notwithstanding, the reason is simple — we don’t want a bona fide criminal benefiting when he or she should consider themselves fortunate to escape just desserts!

“The Court of Appeal’s quashing of the convictions does not mean that (Henry) is factually innocent of the 10 sexual assaults committed against eight women,” the City of Vancouver maintains, with provincial support.

In response to international legal conventions, Canada adopted a set of guidelines in 1988 that states “compensation should only be granted to those persons who did not commit the crime for which they were convicted (as opposed to persons who are found not guilty).”

Until now, as far as can be determined, compensation has been paid only after innocence has been established either by DNA, the subsequent conviction of a real culprit, or an official inquiry has declared the person without sin.

Still, absent such evidence, is it even fair to demand anyone prove they are innocent — and what constitutes proof?

The heavy burden of “proof beyond a reasonable doubt” is a very high standard — imposed only on the state with its resources and coercive powers.

But even the lesser threshold of a balance of probabilities is a substantial burden.

And in historic cases, such as Henry’s, the issue is often complicated by lost evidence and faded memory.

The Association in Defence of the Wrongfully Convicted, the leading Canadian innocence project, lists more than 40 wrongful convictions starting with the 1959 conviction of Stephen Truscott.

But it counts only 18 exonerations.

Sentenced to hang at 14, Truscott had his punishment commuted to life imprisonment. He was paroled in 1969.

In 2007, however, the Ontario Court of Appeal unanimously acquitted him, and the province in 2008 paid him $6.5 million.

He can thank Donald Marshall, Jr., the Nova Scotia Mi’kmaq whose railroading spawned the first Royal Commission into a wrongful conviction.

At 17, Marshall was convicted of a 1971 murder and freed in 1982 after evidence of the miscarriage of justice came to light. A year later the N.S. Court of Appeal quashed his conviction because another man was the killer.

Marshall tried to sue the police but couldn’t afford the legal costs.

As in the Henry case, the authorities blamed Marshall as the author of his own misfortune.

Nevertheless, public outcry sparked an inquiry that in 1989 concluded the province’s five appeal judges had committed misconduct. It exonerated Marshall and he later received $225,000, although he would die in 2009 at only 55.

Sadly, since then there have been six similar commissions of inquiry into notorious wrongful convictions:

• Guy Paul Morin (1998), sentenced to life for the 1984 murder of a nine-year-old Ontario girl, was exonerated in 1995 via DNA and received $1.25 million from the province.

• Thomas Sophonow (2001), convicted of the 1981 killing of a Winnipeg woman, spent four years behind bars before the Manitoba Court of Appeal acquitted him in 1985. He received $2.6 million from Manitoba.

• Randy Druken (2006), who spent six years behind bars for the 2000 murder of his girlfriend, received $2.1 million from the Newfoundland-Labrador government.

• James Driskell (2007), who spent 13 years in prison for a 1990 Winnipeg murder and freed in 2003, received $4 million from the province and city.

• David Milgaard (2008), imprisoned for a 1969 murder and freed in 1992 after the Supreme Court of Canada set aside his conviction, received $10 million in 1997 from Saskatchewan.

• In 2008, Justice Stephen Goudge urged Ontario to compensate the many people wrongly convicted by testimony from disgraced pathologist Charles Smith. The province offered up to $250,000 those affected in a score of tainted cases.

The federal government has refused to adopt the oft-repeated recommendation that it create an independent body similar to one in the U.K. for conviction review.

So, although compensation remains formally based on factual innocence, there is no legal mechanism for determining “factual innocence.”

The Supreme Court said Milgaard in 1992 did not satisfy the standard of establishing his innocence beyond a reasonable doubt.

His case exemplifies the difficulty, if not impossibility, of establishing “factual innocence” without definitive scientific evidence.

Despite a growing litany of injustices, wrongful conviction remains a hurt without a remedy unless you can establish a claim for malicious prosecution, negligence, prosecutorial misconduct, false imprisonment, or perhaps a claim for breach of rights protected under the Charter.

Henry’s lawyers think they can do that, avoiding the innocence question.

Regardless, governments shouldn’t be waiting and forcing those injured by state misconduct to litigate, given the incredible power and resource imbalance.

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